Proposal for a COUNCIL DECISION authorising enhanced cooperation in the area of the creation of unitary patent protection
Date: 2010-12-14
Institutions: European Commission
Subjects: European Patent Office, European patent, approximation of laws, intellectual property, patent law

EN 

EN 

   EN 

 
EUROPEAN COMMISSION 

Brussels, 14.12.2010 
COM(2010) 790 final 

2010/0384 (NLE) 

Proposal for a 

COUNCIL DECISION  

authorising enhanced cooperation in the area of the creation of unitary patent 
protection 

EN 

   EN 

 
 
  
EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION 

On  1  August  2000,  the  Commission  adopted  a  proposal  for  a  Council  Regulation  on  the 
Community  patent1.  The  Commission  proposed  the  creation  of  a  unitary  Community  patent 
which would co-exist with national patents granted by national patent offices of the Member 
States  and  European  patents  granted  under  the  European  Patent  Convention  (EPC)  by  the 
European Patent Office (EPO). As a well functioning centralised patent granting system had 
already been set up in Europe by the EPC in the 1970s, it was envisaged that the Community 
patent would also be granted by the EPO. Users of the patent system would be free to choose 
which type of patent protection best suited their needs. 

The  Commission  proposal  aimed  at  the  creation  of  a  Community  patent  that  would  be 
attractive  to  the  users  of  the  patent  system  in  Europe,  in  particular  by  proposing  simplified 
and cost-effective translation arrangements. In particular, the Commission proposed that after 
grant  of  the  Community  patent  by  the  EPO  in  one  of  the  official  languages  of  the  EPO 
(English,  French  or  German)  and  publication  in  that  language  together  with  a  translation  of 
the  claims  into  the  other  two  official  languages  of  the  EPO,  the  Community  patent  would 
have taken effect in the entire Union.  

The proposal was extensively discussed in the meetings of the Council, but failed to reach the 
required unanimity. On 26 November 2001, it was concluded that due to different aspects of 
the draft Community patent, "in particular the language arrangements", "despite all efforts, it 
was  not  possible  to  reach  agreement  at  this  Council  meeting"2.  On  20  December 2001,  the 
Belgian Presidency proposed a compromise on the translation arrangements, but it also failed 
to reach a unanimous agreement of the Member States3.  

On  3  March  2003,  the  Council  adopted  a  common  political  approach  on  the  Community 
patent. This provided that patent proprietors would have to supply translations of the claims 
into all the official languages of the Member States4. Such an arrangement would have been 
significantly  more  costly  to  patent  proprietors  than  the  original  Commission  proposal  and 
would  have  resulted  in  practical  difficulties  of  supplying  numerous  translations  within  a 
limited  time  period.  It  was  consequently  rejected  by  all  users  of  the  patent  system  as  too 
costly and too risky.  

Following this, both on 28 November 20035 and 11 March 20046, the Council concluded that 
due  to  the  issue  of  the  translation  regime  it  is  unable  to  reach  a  political  agreement  on  the 

1 
2 

3 

4 

5 

Proposal for a Council Regulation on the Community patent - COM(2000) 412, 1.8.2000. 
Press  release  of  the  2389th  Council  meeting  "Internal  Market,  Consumer  Affairs  and  Tourism", 
14400/01, 26.11.2001. 
Press  release  of  the  2403rd  Council  meeting  "Internal  Market,  Consumer  Affairs  and  Tourism", 
15489/01, 20.12.2001. 
Common political approach, pt. 2.3: "the applicant must, upon the grant of the patent, file a translation 
of all claims into all official Community languages except if a Member State renounces the translation 
into  its  official  language.  The  translation  will  be  filed  with  the  EPO  and  the  cost  borne  by  the 
applicant", see Council document 6874/03. 
Press  release  of  the  2547th  Council  meeting  "Competitiveness  (Internal  Market,  Industry  and 
Research)", 15141/03, 26-27.11.2003. 

EN 

2 

   EN 

                                                 
proposed  Regulation  on  the  Community  Patent,  despite  its  previous  common  political 
approach of March 2003.  

the  patent  system 

the  Council  were  re-launched  after  adoption  of 

the  Commission 
Discussions 
in 
in  April  20077.  The 
Communication  "Enhancing 
Communication  confirmed  the  commitment  to  the  creation  of  a  Community  patent.  It  also 
offered  to  explore  with  Member  States  an  approach  to  the  translation  arrangements  with  a 
view to reducing translation costs while facilitating the dissemination of patent information in 
all official languages of the Union. The Commission indicated that in particular the ongoing 
machine translation projects merit consideration.  

in  Europe" 

These ideas  were first  explored  with  the Member  States  during  the Slovenian Presidency in 
20088. On 23 May 2008, the Presidency presented a revised proposal for a Community Patent 
Regulation9 on the basis of the initial simplified translation arrangement as proposed by the 
Commission  in  2000  with  certain  new  elements.  Namely,  any  applicant  could  apply  for  a 
Community  patent  in  any  official  language  of  the  Union.  The  costs  of  translating  this 
application into one of the three languages of the EPO would be reimbursed by the system to 
the applicants from the Member States that have a language not in common with the EPO. A 
system  of  machine  translations  would  ensure  the  translation  of  EU  patents  and  their 
applications  into  all  official  languages  of  the  Union  for  the  provision  of  patent  information 
and without any legal effect. A full translation of the EU patent would only be required in a 
case of a dispute. These proposals were extensively debated in the Council Working Party on 
Intellectual Property (Patents) during the successive Presidencies in 2008 and 2009. 

In  December  2009,  the  Council  adopted  conclusions  on  an  "Enhanced  patent  system  for 
Europe"10 and a general approach on the proposal for a Regulation on the EU Patent11 (change 
from  the  "Community"  to  "EU"  patent  due  to  the  entry  into  force  of  the  Lisbon  Treaty  on 
1 December 2009). However, the translation arrangements for the EU patent remained out of 
the scope of these Council conclusions due to the change of the legal basis for the creation of 
the EU patent under the Lisbon Treaty.  

In  accordance  with  Article  118(1)  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU), the EU patent as a European intellectual property title may be established under the 
ordinary  legislative  procedure.  However,  pursuant  to  Article  118(2)  TFEU,  a  special 
legislative procedure with the unanimity in the Council is still required for the establishment 
of the language arrangements of these titles.  

On this basis, on 30 June 2010 the Commission adopted a proposal for a Council Regulation 
on  the  translation  arrangements  for  the  EU  patent12.  The  proposal  was  accompanied  by  an 
Impact Assessment analysing various options for the possible translation arrangements. After 
careful  analysis,  the  Commission  came  to  the  conclusion  that  the  preferable  option  remains 
the  translation  arrangements  as  set  out  in  the  revised  proposal  for  Community  Patent 

6 

7 
8 
9 
10 
11 
12 

Press  release  of  the  2570th  Council  meeting  "Competitiveness  (Internal  Market,  Industry  and 
Research)", 6648/04, 11.3.2004. 
Communication from the Commission to the European Parliament and the Council - COM(2007) 165. 
Council documents 6985/08 and 8928/08. 
Council document 9465/08. 
Council document 17229/09. 
Council document 16113/09 Add 1. 
Proposal  for  a  Council  Regulation  on  the  translation  arrangements  for  the  European  Union  patent  - 
COM(2010) 350, 30.6.2010. 

EN 

3 

   EN 

                                                                                                                                                         
Regulation of 23 May 200813. This language regime is simplified and cost-effective. It results 
in the highest cost saving for the users while ensuring legal certainty. This regime also builds 
on the well functioning system on the EPO and allows the widest flexibility for applicants.  

The proposal was discussed in the Council Working Parties on Intellectual Property (Patents) 
on  14  July,  28  July  and  7-8  September  2010.  At  the  first  meeting  of  the  Working  Party,  it 
appeared  that  several  delegations  had  fundamental  concerns  with  the  proposal.  Some 
delegations  made  clear  that  a  compromise  was  not  possible.  One  delegation  presented  an 
alternative proposal14 which received little support from other delegations.  

The  Belgian  Presidency  nevertheless  made  every  possible  effort  to  achieve  a  unanimous 
agreement  on  the  translation  arrangements  for  the  EU  patent.  On  29  September  2010,  the 
informal  Competitiveness  Council  had  a  first  exchange  of  views  on  the  Commission's 
proposal  where  possible  elements  for  compromise  proposed  by  the  Presidency  were 
discussed. Although a large majority of Member States supported the Commission's proposal 
and  the  elements  for  compromise,  several  delegations  remained  strongly  opposed.  On  6 
October  2010  the  Presidency  proposed,  for  adoption  by  the  Council,  a  draft  political 
orientation15  which  included  elements  for  a  compromise  solution.  The  compromise  solution 
was based on the Commission's proposal and took into account elements from the alternative 
proposal.  

On 11 October 2010, the Council failed to reach an agreement on the translation arrangements 
on the basis of the draft political orientation. However, the Presidency continued working on a 
solution that could be acceptable to all Member States. On the basis of bilateral discussions 
with the delegations, the Presidency proposed a second set of elements for compromise on 8 
November  201016.  Further  elements  for  compromise  were  added  to  the  draft  political 
orientation on 9 November 201017.  

The  draft  political  orientation  was  the  only  item  on  the  agenda  of  the  extraordinary 
Competitiveness Council convened by the Presidency on 10 November 2010. Despite all the 
efforts  by  the  Presidency  and  the  concessions  made  by  a  number  of  delegations,  several 
Member States could not accept the proposed final compromise and unanimity could not be 
reached.  

During the Council meeting of 11 October 2010, several Member  States  indicated that they 
were ready to consider the possibility of establishing a unitary patent within the framework of 
enhanced  cooperation,  should  the  Council  not  be  able  to  reach  agreement  before  the  end  of 
2010. This intention was confirmed on 9 November 2010 when five delegations sent a letter 
to the Commission stating that if the negotiations regarding the appropriate translation regime 
for the EU patent continue to be blocked at the Council meeting of 10 November, it would be 
clear  that  European  companies  will  be  deprived  of  a  unitary  EU  patent  right  for  the 
foreseeable  future.  Those  Member  States  requested  that  the  Commission  consider  the 
feasibility  of  proposing  enhanced  cooperation  in  this  area,  should  the  Commission  be 
presented  with  requests 
the 
Competitiveness  Council  meeting  of  25  November  2010,  a  number  of  Member  States 

to  propose  such  cooperation 

the  near  future.  At 

in 

13 
14 
15 
16 
17 

Council document 9465/08. 
Council document 13031/10. 
Council document 14377/10. 
Council document 15395/10. 
Council document 15395/10 ADD 1. 

EN 

4 

   EN 

                                                 
expressed  their  interest  in  moving  ahead  within  the  framework  of  enhanced  cooperation, 
while others expressed their opposition. 

At the Competitiveness Council meeting of 10 November 2010, it was recorded that there was 
no  unanimity  to  go  ahead  with  the  proposed  Council  Regulation  on  the  translation 
arrangements for the EU patent.18 It was confirmed at the Competitiveness Council meeting 
on  10  December  2010  that  insurmountable  difficulties  existed,  making  a  decision  requiring 
unanimity impossible now and in the foreseeable future. It follows that the objectives of the 
proposed Regulations to establish unitary patent protection in the entire European Union can 
not be attained within a reasonable period by applying the relevant provisions of the Treaties. 

Twelve  Member  States  (Denmark,  Estonia,  Finland,  France,  Germany,  Lithuania, 
Luxembourg,  the  Netherlands,  Poland,  Slovenia,  Sweden  and  the  United  Kingdom)  have 
addressed formal requests to the Commission indicating that they wish to establish enhanced 
cooperation  between  themselves  in  the  area  of  the  creation  of  unitary  patent  protection  and 
that the Commission should submit a proposal to the Council to that end.  

This proposal is the Commission's response to those requests. 

2. 

LEGAL BASIS FOR ENHANCED COOPERATION 

Enhanced cooperation is regulated by Article 20 of the Treaty on European Union (TEU) and 
Articles 326 to 334 of the Treaty on the Functioning of the European Union (TFEU).  

This proposal of the Commission for a Council Decision authorising enhanced cooperation in 
the area of the creation of unitary patent protection is based on Article 329(1) TFEU.  

3. 

MEASURES IMPLEMENTING ENHANCED COOPERATION 

The  Commission  proposal  for  a  Council  Decision  deals  with  the  authorisation  of  enhanced 
cooperation  in  the  area  of  the  creation  of  unitary  patent  protection.  Proposals  for  specific 
measures implementing enhanced cooperation will be submitted once enhanced cooperation is 
authorised by the Council.  

It  is,  however,  appropriate  to  outline  some  key  elements  of  the  envisaged  implementing 
measures. Since the creation of unitary patent protection is not possible without an agreement 
on the applicable translation arrangements,  both  the  substantive provisions applicable to the 
unitary patent (Article 118(1) TFEU) and the translation arrangements (Article 118(2) TFEU) 
should be part of the envisaged implementing measures. 

The envisaged implementing measures should, therefore, include the following elements: 

(1) 

A  proposal  for  a  Regulation  of  the  European  Parliament  and  the  Council  creating 
unitary  patent  protection.  That  proposal  could  be  based  on  the  text  agreed  (general 

18 

Press  Release  of  the  Extraordinary  Council  meeting  "Competitiveness  (Internal  Market,  Industry, 
Research and Space)", 16041/10, 10.11.2010. 

EN 

5 

   EN 

                                                 
approach) in the Council on 4 December 200919 as well as certain elements of the draft 
political orientation proposed by the Belgian Presidency, in particular: 

–  The unitary patent protection should be optional to the users of the patent system 
and should co-exist with national and European patents. The unitary patent should 
be  a  specific  category  of  a  European  patent,  granted  by  the  European  Patent 
Office,  designating  the  Member  States  participating  in  enhanced  cooperation  on 
unitary basis.  

–  Consequently,  a  single  procedure  in  accordance  with  the  EPC  would  apply  to 
unitary  patents  and  to  all  other  European  patents.  Until  the  moment  of  grant, 
applicants  would  have  the  choice  between  (i)  a  European  patent  valid  in  the 
territories  of  the  participating  Member  States  for  which  this  patent  would  have 
unitary character, (ii) a European patent valid in the territories of the participating 
Member  States  for  which  this  patent  would  have  unitary  character  but  also 
designating  selected  other  Contracting  States  of  the  EPC,  or  (iii)  a  European 
patent designating only selected Contracting States of the EPC. 

–  The unitary patent should be of autonomous nature and provide equal protection 
throughout  the  territories  of  the  participating  Member  States.  It  may  only  be 
granted,  transferred,  revoked  or  may  lapse  in  respect  of  those  territories  as  a 
whole. 

(2) 

A  proposal  for  a  Council  Regulation  on  the  translation  arrangements  for  the  unitary 
patent. This proposal would take over the main elements of the Commission's proposal 
for a Council Regulation on the translation arrangements for the EU patent20 as well as 
certain elements of the draft political orientation proposed by the Belgian Presidency, 
in particular: 

–  It is envisaged that the specification of the unitary patent be published by the EPO 
in  accordance  with  Article  14(6)  EPC.  Without  prejudice  to  any  transitional 
arrangements  deemed  necessary,  no  further  translations  would  be  required.  Any 
additional translation requirements under such transitional arrangements would be 
proportionate  and  required  only  on  a  temporary  basis  and  not  have  legal  value 
thus  ensuring  legal  certainty  for  the  users  of  the  patent  system.  In  any  case, 
transitional arrangements would terminate when high quality machine translations 
are made available, subject to an objective evaluation of the quality. 

–  Translations should not have legal value thus ensuring legal certainty for the users 

of the patent system. 

–  In  case  of  a  dispute  relating  to  a  unitary  patent,  a  full  manual  translation  of  the 
patent  specification  would  have  to  be  provided  by  the  patent  proprietor  at  his 
expense: 

(a) 

into  an  official  language  of  the  Member  State  in  which  either  the 
alleged  infringement  took  place  or  in  which  the  alleged  infringer  is 
domiciled (at the choice of the alleged infringer); and 

19 
20 

Council document 16113/09. 
COM(2010) 350. 

EN 

6 

   EN 

                                                 
(b) 

into  the  language  of  proceedings  of  the  court  hearing  the  dispute  (at 
the request of the court). 

–  A scheme for compensating the costs of translating patent applications filed in an 
official  language  of  the  Union  into  an  official  language  of  the  EPO  at  the 
beginning of the procedure for applicants based in the Member States which have 
an official language other than one of the official languages of the EPO, should be 
set  up  in  addition  to  what  is  currently  in  place  for  other  European  patents, 
including financial and technical assistance for preparing those translations. 

4. 

4.1. 

ASSESSMENT  OF  THE  LEGAL  CONDITIONS  FOR  ENHANCED 
COOPERATION 

Authorising  decision  as  last  resort  and  participation  of  at  least  nine  Member 
States 

Article 20(2) TEU lays down that a decision authorising enhanced cooperation can be adopted 
by  the  Council  only  as  a  last  resort,  when  it  has  established  that  the  objectives  of  such 
cooperation cannot be attained within a reasonable period by the Union as a whole, and that at 
least nine Member States participate in it. 

It was recorded at the Competitiveness Council meeting of 10 November 2010 that there was 
no  unanimity  to  go  ahead  with  the  proposal  for  a  Council  Regulation  on  the  translation 
arrangements for the EU patent21. It was confirmed at the Council meeting on 10 December 
2010  that  insurmountable  difficulties  existed,  making  a  decision  requiring  unanimity 
impossible at the time and in the foreseeable future.  

Whereas  the  translation  arrangements  are  necessary  for  the  creation  of  unitary  patent 
protection, it has been established that the objectives of the Regulation on the EU patent can 
not be attained within a reasonable period by applying the relevant provisions of the Treaties. 
It follows that no other solution for the creation of unitary patent protection for the Union as a 
whole can be found and that as a result, enhanced cooperation is a last resort. 

The Commission has received requests from twelve Member States indicating that they wish 
to  establish  enhanced  cooperation  between  themselves  in  the  area  of  the  creation  of  unitary 
patent  protection.  These  Member  States  confirmed  their  requests  at  the  meeting  of  the 
Competitiveness Council on 10 December 2010. 

4.2. 

Area covered by the Treaty 

Article 329(1) TFEU lays down that enhanced cooperation can be established "in one of the 
areas covered by the Treaties". Establishing measures for the creation of European intellectual 
property  rights  is  expressly  mentioned  in  Article  118  TFEU.  The  creation  of  unitary  patent 
protection  is  a  sufficiently  homogenous  and  structured  subject  matter  to  constitute  a  well-
defined  area,  within  the  meaning  of  the  Treaties,  in  which  enhanced  cooperation  may  be 
established. 

21 

Press  Release  of  the  Extraordinary  Council  meeting  "Competitiveness  (Internal  Market,  Industry, 
Research and Space)", 16041/10, 10.11.2010. 

EN 

7 

   EN 

                                                 
Article 20(1) TEU lays down that enhanced cooperation can only be established "within the 
framework  of  the  Union's  non-exclusive  competences".  Unitary  patent  protection  is  not 
included in the list of exclusive competences set out in Article 3(1) TFEU. The legal basis for 
legislating  in  the  matter  of  intellectual  property  rights  (Article  118  TFEU)  falls  within  the 
chapter  of  approximation  of  laws  and  makes  specific  reference  to  the  establishment  and 
functioning  of  the  internal  market,  which  is  one  of  the  shared  competences  of  the  Union 
(Article  4  TFEU).  The  creation  of  unitary  patent  protection  with  applicable  translation 
arrangements therefore falls within the framework of the Union's non-exclusive competences. 
The consideration that only the Union can establish unitary patent protection within the Union 
does  not  make  the  establishment  of  such  unitary  patent  protection  a  matter  of  exclusive 
competence.  Any  argument  to  the  contrary  confuses  the  notions  of  the  conferral  of  power 
(which in this case is a power to establish measures for the creation of European intellectual 
property rights to provide uniform protection throughout the Union) and the manner in which 
the power is exercised by the Union. 

4.3. 

Furthering  the  objectives  of  the  Union,  protecting  its  interests  and  reinforcing 
its integration process 

4.3.1.  Furthering the objectives of the Union 

Two objectives of the Union as set out in Article 3(3) TEU are of particular relevance for the 
area of patents:  

–  the establishment of an internal market; and  

–  the promotion of scientific and technological advance. 

Establishment of an internal market 

The internal market comprises an area without internal frontiers and in which notably the free 
movement  of  goods  is  ensured  (Article  26(2)  TFEU).  For  that  purpose,  the  Union  should 
adopt measures with the aim of ensuring the functioning of the internal market (Article 26(1) 
TFEU).  One  such  measure  is  the  creation  of  "European  intellectual  property  rights". 
Article 118(1) TFEU expressly states that such  rights shall be created "in the context of the 
establishment and functioning of the internal market".  

The current national patent systems of Member States and the European patent system lead to 
a fragmented system for patent protection in Europe. The main reason is that national patents 
and  European  patents  provide  territorially-limited  protection  without  covering  the  internal 
market as a whole, on a unitary basis, due to the following: 

–  the protection conferred by a national patent is limited to the territory of the Member State 

in which it has been granted;  

–  the territorial scope of a European patent depends on the decision of the patent proprietor 
to  validate  the  European  patent  in  one  or  more  Member  States  where  the  patent  has  the 
effect  of  a  national  patent  (implying  administration  by  the  national  patent  office  and 
enforcement before national courts). 

EN 

8 

   EN 

There  is  ample  evidence  that,  in  practice,  patent  proprietors  currently  only  seek  patent 
protection for their inventions in a few Member States22. They appear to refrain from seeking 
patent protection in large areas within the Union due to high costs and complexity caused by 
translation costs, validation requirements, official fees (publication and annual renewal fees) 
and professional representation requirements (see Section 5.2.2 below).  

The  creation  of  a  unitary  patent  for  a  group  of  Member  States  would  imply  improving  the 
level  of  patent  protection  through  the  creation  of  a  title  which  confers  uniform  protection 
throughout  the  territories  of  the  participating  Member  States.  In  the  territories  of  those 
Member States, users of the European patent system would have access to a patent providing 
unitary  patent  protection  and  eliminating  the  costs  and  complexity.  A  unitary  patent  would 
therefore further the objective of the Union to ensure the functioning of the internal market, 
even if only a limited number of Member States participate.  

In  Member  States  which  choose  not  to  participate  in  enhanced  cooperation,  the  legal 
framework  relating  to  patents  would  remain  unaffected.  This  means  that  inventors  seeking 
patent protection in non-participating Member  States would  need  to  validate their  European 
patent  for  those  territories  with  the  resulting  translation  and  other  transactional  costs.  The 
European patent for the territories of the participating Member States, for which it would have 
unitary  character,  could  also  designate  selected  non-participating  Member  States.  It  would 
thus be possible to obtain patent protection throughout the Union.  

In addition, inventors established in non-participating Member States would be able to benefit 
from the uniform patent protection in the area covered  by  the  territories of the participating 
Member  States  (explained  in  more  detail  in  Section  4.6).  As  a  result,  obtaining  patent 
protection throughout the Union would be simplified and the costs for such protection would 
be  drastically  reduced  for  inventors  from  both  participating  and  from  non-participating 
Member  States.  Consequently,  it  is  expected  that  significantly  more  inventors  would  seek 
patent protection throughout the Union than is currently the case.23 This would be beneficial 
for the functioning of the internal market. 

Promotion of scientific and technological advance 

It  is  generally  acknowledged  that  easy  access  to  patent  protection  stimulates  R&D:24  the 
propensity  of  individual  inventors,  innovative  SMEs  and  big  businesses  to  invest  in  R&D 
depends to a large extent on the possibility of securing an exclusive right for any  invention 
made, in order to ensure fair return on their investment. Easy access to a more cost-effective, 
simpler  and  legally  secure  patent  system  is  therefore  of  utmost  importance  for  promoting 
scientific and technological advance in the Union. 

The  current  fragmented  patent  system  in  Europe  is  not  conducive  to  creating  the  proper 
framework  conditions  for  stimulating  R&D.  The  existing  patent  system  is  perceived  by 
businesses – especially by SMEs – as too costly and complex25. 

22 

23 
24 
25 

On  average,  a  European  patent  is  only  validated  in  five  Member  States,  see  Impact  Assessment 
accompanying the Commission's proposal for a Council Regulation on the translation arrangements for 
the EU patent - SEC(2010) 796, p. 12 - with further references. 
See Section 5.2.1. below. 
Guellec / van Pottelsberghe, The Economics of the European Patent System, OUP 2007. 
See, for instance, the Commission's 2006 Consultation on the future patent policy in Europe. 

EN 

9 

   EN 

                                                 
The  creation  of  a  unitary  patent  will  bring  considerable  advantages  to  users  of  the  patent 
system in terms of easier access, better cost-effectiveness, more simplification and improved 
legal  certainty.  It  will  not  only  be  easier  and  less  costly  to  obtain  patent  protection  for  the 
territories of the participating Member States, but also easier and less costly to obtain patent 
protection  for  the  whole  Union,  as  explained  above.  These  improved  framework  conditions 
will contribute to stimulate R&D  investments and thus promote scientific  and  technological 
advancement  throughout  the  Union.  Since  users  in  non-participating  Member  States  would 
also benefit from unitary patent protection, positive effects can equally be expected on R&D 
activities in non-participating Member States.  

4.3.2.  Protecting its interests and reinforcing its integration process 

Protection of Union's interests  

Due to the fragmentation of the internal market resulting from the high costs associated with 
patent  protection  in  the  Union,  the  Union's  inventors  cannot  enjoy  the  full  benefits  of  the 
Single Market. This is notably the case if such inventors seek optimal protection for the Union 
as a whole. This compares negatively with other major economies such as the United States, 
Japan or China. It can in particular be more attractive for an inventor to seek patent protection 
in economies with large consumer markets and unitary protection systems, such as the United 
States. This situation has negative impact on the competitiveness of the Union as innovation-
related activities generate human capital that tends to be more mobile than in other areas. The 
current  less  advantageous  framework  conditions  for  innovation  makes  the  Union  a  less 
attractive  place  to  create  and  innovate,  for  both  European  and  non-European  inventors. 
Enhanced cooperation in the area of unitary patent protection for a group of Member States 
would thus protect the interests of the Union as it would improve its competitive position and 
its attractiveness for the rest of the world. 

Reinforcement of Union's integration process 

Enhanced cooperation in the area of the unitary patent protection among a group of Member 
States  would  also  increase  the  level  of  integration  between  the  participating  Member  States 
and  also  between  participating  and  non-participating  Member  States  as  compared  to  the 
current situation.  

Instead  of  27  legal  frameworks  of  different  validation  and  maintenance  requirements  in  the 
post-grant phase, users may choose between a unitary patent subject to one legal regime and a 
European  or  a  national  patent  subject  to  national  legal  regimes,  thus  bringing  greater 
harmonisation in the patents area and reinforcing the integration process in the participating 
Member States. 

Due to the costs and complexity inherent in the current system, European patents are validated 
on average in five Member States. This creates patent right "borders" within the Union. With 
a unitary patent, internal patent right borders among the participating Member States would 
disappear.  Moreover,  since  the  overall  costs  and  complexity  of  obtaining  patent  protection 
throughout the Union would be significantly reduced, it could be expected that more inventors 
would seek patent protection by means of a European patent also in the Member States that do 
not participate in enhanced cooperation26.  

26 

See Section 5.2.1. below. 

EN 

10 

   EN 

                                                 
This  is  even  more  likely  as  inventors  would  have  an  interest  in  obtaining  patent  protection 
throughout the Union in order to protect the inventions against products from third countries 
that infringe their patents entering the internal market. Currently, a seizure of such products at 
the external borders of the Union under the EU Customs Border Regulation is not possible if 
these products are imported via Member States where the patent holder has not validated his 
patent.  This  severely  hampers  the  protection  against  imports  of  products  infringing  patents 
from third countries. It can be expected that once overall costs are significantly reduced, more 
patent  holders  suffering  from  this  will  seek  wider  protection.  Consequently,  enhanced 
cooperation would strengthen integration in the area of patent protection in the Union. 

Unitary  patent  protection  would  therefore  reinforce  integration  between  the  participating 
Member  States  by  providing  a  high  level  of  patent  protection  across  the  borders  of  the 
participating  Member  States.  By  providing  uniform  patent  protection  in  the  participating 
Member States, the unitary patent will provide for an area without "patent loopholes" where 
undesirable  effects  such  as  the  fragmentation  of  the  internal  market  and  "free-riding"  by 
infringers  can  be  countered.  As  far  as  integration  between  participating  Member  States  and 
non-participating  Member  States  is  concerned,  positive  effects  can  also  be  expected  since 
users  from  non-participating  Member  States  would  also  benefit  from  the  unitary  patent  and 
the  access  to  uniform  patent  protection  in  the  participating  Member  States.  This  would 
contribute  to  intensify  cross  border  economic  activities  between  participating  and  non-
participating Member States as well.  

4.4. 

Compliance with the Treaties and Union law 

In accordance with Article 326 TFEU, enhanced cooperation must comply with the Treaties 
and Union law. In the area of the creation of unitary patent protection, enhanced cooperation 
would respect the existing acquis. 

First,  the  cooperation  would  be  established  in  an  area  that  is  covered  by  the  shared 
competences of the Union (Article 4(2) TFEU – see Section 4.2 above). 

Second, there is to date only a limited number of legal acts of the Union within the meaning 
of  Article  288  TFEU  none  of  which  cover  the  creation  of  a  European  intellectual  property 
right providing for uniform protection throughout the Union. 

With the exception of Directive 98/44/EC of the European Parliament and of the Council of 6 
July  1998  on  the  legal  protection  of  biotechnological  inventions27,  no  approximation  of 
substantive  patent  law  exists  at  Union  level.  This  Directive  provides  in  particular  for 
harmonised  patentability  criteria  and  exceptions  from  patentability  for  biotechnological 
inventions. The Union legislator has enacted legislation concerning patent term extensions for 
specific  types  of  patented  subject  matter.  The  relevant  instruments  are  Regulation  (EC)  No 
1610/96  creating  a  supplementary  protection  certificate  for  plant  protection  products28  and 
Regulation  (EC)  No  469/2009  creating  a  supplementary  protection  certificate  for  medicinal 
products29. 

Enhanced  cooperation  in  the  area  of  patents  would  not  cause  discrimination.  Access  to  the 
unitary patent will be open to users of the patent system from all over the Union, whatever the 

27 
28 
29 

OJ L 213, 30.7.1998, p. 13. 
OJ L 198, 8.8.1996, p. 30–35. 
OJ L 152, 16.6.2009, p. 1–10. 

EN 

11 

   EN 

                                                 
applicants'  nationality,  residence  or  place  of  establishment.  On  the  other  hand,  users  would 
continue  to  be  able  to  obtain  patent  protection  in  non-participating  Member  States  by 
designating those Member States in addition to the unitary designation of the territories of the 
participating Member States.  

Further,  all  users  would  have  a  possibility  of  validating  their  European  patent  for  the 
territories of the participating Member States and for non-participating Member States under 
the  same  conditions.  The  same  patent  for  the  same  invention  would  thus  be  granted  by  the 
EPO  without  any  additional  administrative  burden  and  without  additional  costs.  The  users 
would  pay  the  relevant  fees  for  the  grant  of  their  patent  to  the  EPO  and  would  retain  the 
choice  of  the  territories  to  be  covered  until  the  grant,  namely  the  choice  between  (i)  a 
European  patent  valid  in  the  territories  of  the  participating  Member  States  for  which  this 
patent  would  have  unitary  character,  (ii)  a  European  patent  valid  in  the  territories  of  the 
participating  Member  States  for  which  this  patent  would  have  unitary  character  but  also 
designating  selected  other  Contracting  States  of  the  EPC,  or  (iii)  a  European  patent 
designating only selected Contracting States of the EPC. 

4.5. 

No  undermining  of  the  internal  market  or  economic,  social  and  territorial 
cohesion, no barrier to or discrimination in trade no distortion of competition 

4.5.1.  Enhanced cooperation must not undermine the internal market or economic, social 

and territorial cohesion 

Article 326 TFEU requires that enhanced cooperation must not undermine the internal market 
or economic, social and territorial cohesion. 

As  explained  above,  the  creation  of  unitary  patent  protection  for  a  group  of  Member  States 
would  contribute  to  the  functioning  of  the  internal  market30.  Unitary  patent  protection  with 
uniform effect in the participating Member States will reduce current problems caused by the 
fragmented patent system in participating Member States. In particular, patent proprietors will 
be  able  to  prevent  infringing  goods  and  products  from  third  countries  from  entering  the 
territories  of  the  participating  Member  States  and  to  adapt  production,  licensing  and 
businesses practices to the markets of the participating Member States. 

The  functioning  of  the  internal  market  would  also  improve  as  regards  the  non-participating 
Member States since, as explained above, it is likely that more inventors would seek patent 
protection throughout the Union.  

Moreover,  as  explained  in  more  detail  in  Section  4.6.  below,  equal  access  to  unitary  patent 
protection  would  be  ensured  to  all  patent  holders  whether  they  come  from  participating 
Member  States  or  non-participating  Member  States.  Unitary  patent  protection  covering  the 
territories of the participating Member States would be an additional instrument available to 
all patent holders in the Union and can only improve the current state of the functioning of the 
internal market. This should also contribute to improving economic cohesion. 

More generally, economic, social and territorial cohesion would not be adversely affected by 
unitary patent protection as, in particular, the place of establishment of an economic operator 
will  be  immaterial  for  access  to  unitary  patent  protection  (and  the  associated  simplification 
benefits and cost savings). 

30 

See Section 4.3.1. above. 

EN 

12 

   EN 

                                                 
4.5.2.  Enhanced  cooperation  must  not  constitute  a  barrier  to  or  discrimination  in  trade 

between Member States nor distort competition between them 

Article  326  TFEU  requires  that  enhanced  cooperation  must  not  constitute  a  barrier  to  or 
discrimination in trade between Member States nor distort competition between them. 

As explained above, the creation of unitary patent protection within the territories of a group 
of Member States would contribute to the functioning of the internal market and, particularly, 
the  free  movement  of  goods.  Today's  fragmentation  where  patent  right  "borders"  exist 
between Member States (due to the limited territorial scope of existing patent rights) would 
disappear among participating Member States. As far as trade between participating Member 
States  and  non-participating  Member  States  is  concerned,  the  situation  is  also  likely  to 
improve as more inventors are likely to seek protection throughout the Union than currently is 
the case31.  

In addition, (and as explained further under Section 4.6 below) enhanced cooperation in the 
area  of  unitary  patent  protection  will  not  constitute  a  barrier  to,  or  a  discrimination  in  trade 
between Member States. The unitary patent system will be open as inventors and innovative 
companies  from  non-participating  Member  States  would  have  access  to  unitary  patent 
protection  when  seeking  patent  protection  in  the  participating  Member  States  on  an  equal 
footing with their counterparts from participating Member States. As far as patent protection 
in non-participating Member States is concerned, no barrier to, or discrimination in trade will 
be created as all users will need to validate their European patent in those States or to obtain 
national patents, whether they come from participating, or non-participating member states. 

Concerning  the  requirement  that  enhanced  cooperation  does  not  distort  competition, 
competition  would  neither  be  distorted  between  Member  States  nor  between  economic 
operators.  

Unitary  patent  protection  created  under  enhanced  cooperation  would,  in  particular,  not 
influence competition between Member States for investments by innovative companies. The 
framework conditions for innovative businesses would improve all over the Union due to the 
savings of patenting costs as described above. As the place of establishment of an economic 
operator  will  be  immaterial  for  access  to  unitary  patent  protection  (and  the  associated  cost 
savings), whether or not a Member State participates in enhanced cooperation would not be 
decisive for an investment decision in favour or against that Member State. 

As  regards  the  competition  between  undertakings  from  participating  and  non-participating 
Member  States,  the  creation  of  unitary  patent  protection  would  improve  the  framework 
conditions  for  innovative  businesses  throughout  the  Union.  The  number  of  patents  valid  on 
both the territories of participating Member States and on the territories of non-participating 
Member States is likely to increase, as patent proprietors may wish to obtain a unitary patent 
for participating Member States, while making use of the cost savings resulting from the use 
of  the  unitary  patent  to  obtain  European  patents  for  the  territories  of  the  non-participating 
Member  States.  As  explained  above,  this  is  particularly  likely  in  those  economic  sectors 
which  are  affected  by  the  imports  of  products  infringing  European  patents  from  third 
countries  since  only  seamless  protection  at  all  external  borders  of  the  Union  would  allow 
patent  proprietors  to  effectively  use  the  EU  Customs  Border  Regulation  and  to  have  these 
products seized at all external borders.  

31 

See Sections 4.3.2. and 5.2.1. 

EN 

13 

   EN 

                                                 
4.6. 

Respecting the rights of non-participating Member States  

Article  327  TFEU  requires  that  any  enhanced  cooperation  respects  the  competences,  rights 
and obligations of those Member States that do not participate in it. 

Enhanced cooperation in the area of patents would fully respect the rights of non-participating 
Member States. Access to the unitary patent would be open to users of the patent system from 
all  over  the  Union,  regardless  of  the  applicants'  nationality,  residence  or  place  of 
establishment. On the other hand, users would continue to be able to obtain patent protection 
in non-participating Member States by obtaining a European patent on the territories of those 
Member  States  or,  less  likely,  by  obtaining  national  patents.  Therefore,  access  of  inventors 
and innovative companies from non-participating Member States to the unitary patent would 
be identical to the ones from the participating Member States. 

The participating Member States would therefore create unitary patent protection throughout 
the  territory  of  enhanced  cooperation.  The  right  of  non-participating  Member  States  to 
maintain the requirements for patent protection on their territories are thus not affected. They 
can, for example, continue requesting translations of European patents as a prerequisite for a 
validation on their national territory. 

It  should  be  emphasised  that  a  unitary  patent  would  not  discriminate  between  users  coming 
from  participating  Member  States  and  from  non-participating  States:  users  from  non-
participating  Member  States  would  have  access  to  unitary  patent  protection  when  seeking 
patent  protection  (and  thus  access  for  their  innovative  products  to  the  markets)  in  the 
participating Member States on an equal footing with users from participating Member States. 
As  far  as  patent  protection  in  non-participating  Member  States  is  concerned,  all  users  will 
need to validate their European patent in those States or to obtain national patents. 

Applicants from the non-participating Member States would also be able to benefit from the 
compensation of costs for translations of applications filed in a national language into one of 
the  EPO  working  languages  in  the  same  way  as  applicants  from  the  participating  Member 
States. Moreover, alleged infringers from non-participating Member States would also benefit 
from the requirement  to be provided with a full manual translation in the case of a dispute. 
Consequently, there would be no discrimination between the users from the participating and 
the non-participating Member States. 

Finally, it is noted that enhanced cooperation on unitary patent protection does not raise any 
issues in relation to the exhaustion of the patent rights. There would be no impact on the free 
movement  of  goods  between  the  participating  Member  States  and  the  non-participating 
Member States. According to the standing case law of the Court of Justice of the European 
Union,  exhaustion  of  the  patent  right  or  any  other  intellectual  or  industrial  property  right 
requires  that  the  protected  item  has  been  put  on  the  market  within  the  Union  (or  within  the 
European Economic Area) by the right holder himself or with his consent. As regards patents, 
the Court of Justice has indeed ruled that the Treaty rules concerning the free movement of 
goods,  including  the  provisions  of  Article  36  TFEU,  must  be  interpreted  as  preventing  the 
patent proprietor who sells a product in one Member State where this product is protected by 
a patent, and then markets it himself in another Member State where it is not protected, from 

EN 

14 

   EN 

availing himself of the right conferred by the legislation of the first Member State to prevent 
the marketing in that State of the said preparation imported from the other Member State32.  

4.7. 

Conclusion on the fulfilment of legal conditions 

On the basis of above, the Commission concludes that all legal conditions set by the Treaties 
for enhanced cooperation are fulfilled. 

5. 

ASESSMENT OF THE IMPACTS OF ENHANCED COOPERATION 

5.1. 

Current situation 

The  current  situation  resulting  from  national  and  European  patents  providing  only 
territorially-limited  patent  protection  leads  to  "gaps"  within  the  Union  which  may  have 
several of the following undesirable effects: 

–  Business  opportunities  are  lost:  patent  proprietors  will  tend  to  focus  on  some  national 
markets  in  their  patent  protection  and  the  production,  licensing  and  marketing  of  their 
products; business opportunities in other markets – whether smaller or more distant – are 
less  likely  to  be  pursued;  this  fails  to  fulfil  a  true  internal  market  and  this  may  also 
undermine the cohesion within the Union;  

–  Innovative  companies  are  at  a  disadvantage:  third  parties  producing  and  selling  patented 
products  in  Member  States  where  patent  protection  has  not  been  secured  have  a 
competitive  advantage  over  patent  proprietors  who  need  to  recoup  R&D  investments; 
especially innovative SMEs who have refrained from securing patent protection throughout 
the Union due to the high costs associated with obtaining such protection; 

–  The  value  of  patents  is  weakened:  patent  proprietors  cannot  rely  on  the  EU  Customs 
Border  Regulation33  to  prevent  infringing  goods  and  products  from  third  countries  from 
entering the internal market through Member States in which there is no patent protection; 
such infringing goods and products have to be released by the customs authorities and may 
thus  circulate  freely  within  the  internal  market;  in  principle,  they  may  not  enter  Member 
States where patent protection has been secured, but in practice – as border controls are no 
longer  in  place  within  the  internal  market  –  such  goods  or  products  can  circulate  freely 
within the Union34. 

5.2. 

Assessment of the impacts  

The  creation  of  a  unitary  patent  title  for  a  group  of  Member  States  would  entail  immediate 
tangible  advantages  for  users  of  the  patent  system  in  Europe.  The  following  features  of 
unitary patent protection should be emphasised:  

32 
33 

34 

Case 187/80, Merck & Co. Inc. v Stephar BV and Petrus Stephanus Exler, [1981] ECR, p. 2063. 
Council  Regulation  (EC)  No  1383/2003  concerning  customs  action  against  goods  suspected  of 
infringing certain intellectual property rights and the measures to be taken against goods found to have 
infringed such rights. 
The  identification  of  the  goods  in  breach  of  the  patent  becomes  very  complicated  once  they  are 
circulating freely within the internal market. Only when enforcing the patent before national courts can 
patent proprietors assert their rights. 

EN 

15 

   EN 

                                                 
– 

– 

Improved access to patent protection 

Cost reduction and simplification 

5.2.1. 

Improved access to patent protection 

The unitary patent for the area covered by enhanced cooperation would ensure easier access 
to  patent  protection  for  all  users  of  the  patent  system  in  Europe.  This  would  apply  both  for 
applicants from participating Member States and from non-participating Member States. The 
area for enhanced cooperation would cover a market that is much larger than any market of a 
single  Member  State,  resulting  in  reduced  costs  of  protection  relative  to  the  size  of  the 
economy. 

The effect of relative patenting costs on the demand for patent protection was investigated in a 
recent study performed for the Commission35. That study compared patent costs, taking into 
account the market size and the number of claims in an average patent for a given territory, 
and  showed  that  very  high  costs  in  Europe  induce  a  much  smaller  demand  for  patent 
applications  filed  at  the  EPO.  The  study  also  shows  that  the  London  Agreement36  has  a 
substantial  impact  on  reducing  costs,  but  a  European  patent  remains  several  times  more 
expensive than a US patent. 

By providing for a unitary patent title covering a sizeable area of the Union, the cost per claim 
per capita for patent protection would decrease. Studies have shown the fee elasticity to be -
0.437; a fee increase of 10% would lead to a drop in patent filing of about 4%. By reducing the 
cost of patent protection per capita, an enlarged territory for patent protection should therefore 
lead  to  greater  demand  for  patenting.  This  would  bring  about  new  opportunities  for  SMEs 
where  high  relative  costs  currently  make  protection  outside  their  own  domestic  market 
virtually inaccessible.  

5.2.2.  Cost reduction and simplification 

Unitary patent protection created under enhanced cooperation would result in significant cost 
reduction and simplification of the system for the users due to the central administration of the 
unitary patent and the simplified translation requirements. 

5.2.2.1.  Central administration of the unitary patent 

The  central  administration  of  the  unitary  patent  would  bring  significant  improvements  in 
terms of cost reduction and simplification. The following advantages would be noticeable: 

•  Central  payment  of  annual  renewal  fees  (as  opposed  to  the  current  payment  of  annual 
renewal  fees  to  the  national  patent  offices  in  each  Member  State  where  the  patent 

35 

36 

37 

Economic  Cost-Benefit  Analysis  of  the  Community  Patent  by  Bruno  van  Pottelsberghe  and  Jérôme 
Danguy, see http://ec.europa.eu/internal_market/indprop/patent/index_en.htm 
The London Agreement is an optional scheme seeking to reduce the patenting costs in the framework of 
the EPC. It was adopted in October 2000 by an Intergovernmental Conference of the EPC Contracting 
States and entered into force on 1 May 2008 for fourteen EPC Contracting States of which ten are EU 
Member States.  
G de Rassenfosse and B van Pottelsberghe, Per un pugno di dollari: A first look at the price elasticity of 
patents, Oxford Review of Economic Policy, 23(4), 588-604. 

EN 

16 

   EN 

                                                 
proprietor  wishes  to  maintain  the  patent  in  force):  again,  patent  proprietors  will  benefit 
from significant cost reduction: 

–  as far as official fees are concerned, patent proprietors would only need to pay one 
annual renewal fee for the unitary patent, rather than having to pay annual renewal 
fees in each Member State where maintenance of the national or European patent 
is intended; 

–  as  far  as  representation  costs  are  concerned,  patent  proprietors  would  be  able 
either to pay themselves annual renewal fees for the unitary patent directly to the 
EPO or to entrust only one professional representative with such payment, rather 
than having to entrust professional representatives with payments in each Member 
State where maintenance is intended38. 

•  Central registration of legal information relating to the patent, such as licenses, transfers, 
limitations, lapses, surrenders (as opposed to the current national requirements relating to 
registration  at  the  national  patent  offices):  this  would  greatly  enhance  legal  certainty  by 
enabling easy access to legal information relating to patents; in particular in the context of 
negotiations  of  licensing  agreements,  and  especially  in  the  context  of  standards,  an 
overview  of  ownership  and  legal  status  of  patents  is  crucial  and  enable  a  much  better 
management of patent portfolios. 

5.2.2.2.  Translation requirements 

The lack of a unitary patent title results in significant costs directly and indirectly related to 
the  currently  applicable  translation  requirements.  At  present,  a  European  patent  must  be 
validated  in  a  majority  of  EPC  Contracting  States  in  order  to  take  effect.  National  law  may 
require that the patent proprietor file a translation of the patent, pay a publication fee to the 
national patent office and comply with various formal requirements (relating for instance to 
the number of copies to be filed, use of prescribed forms, time periods). Significant costs, red-
tape and complexity accrue in this process, including the following: 

•  Costs of technical translations. Specialised translators are needed to translate the technical 
text contained in patents. On average, EUR 85 is charged per page while the length of a 
typical patent is about 20 pages (but may reach 200 pages in certain cases). 

•  Fees charged by professional representatives. Local professional representatives often act 
as  intermediaries  between  the  patent  proprietor  and  the  national  patent  offices  where  the 
translations are to be filed. They may offer to arrange for translations or verify translations 
carried  out  by  external  translators,  or  they  may  offer  to  ensure  that  formal  requirements 
laid down by national law are complied with. Fees must be paid by the patent proprietor 
for  such  services,  and  they  vary  from  around  EUR  150  to  EUR  600  per  validation  of  a 
patent depending on the Member State. 

38 

to  use  a 

It  may  be  recalled  that  several  Member  States  maintain  direct  or  indirect  requirements  for  patent 
proprietors 
local  professional  representative  before  national  patent  offices,  see 
http://www.epo.org/patents/law/legal-texts/html/natlaw/en/vi/index.htm  (for  the  payment  of  annual 
renewal  fees)  and  http://www.epo.org/patents/law/legal-texts/html/natlaw/en/iv/index.htm  (for  filing 
translations). 

EN 

17 

   EN 

                                                 
•  Official  fees  charged  by  national  patent  offices  for  the  publication  of  the  translations. 
Publication fee for a European patent of typical length (20 pages) varies from EUR 25 to 
EUR 400 in certain Member States. 

In  total,  these  validation  costs  can  add  up  to  about  40%  of  the  overall  costs  of  patenting  in 
Europe.  In  many  cases,  validation  of  a  European  patent  in  just  one  Member  State  may  cost 
more than all fees paid to the EPO for the search, examination and grant of a European patent. 

With a unitary title for a number of Member States, significant cost savings and simplification 
for  the  users  of  the  system  may  be  achieved. For participating Member States, the common 
simplified translation arrangements would result in the following: 

(a) 

translation  requirements  would  be  limited  to  the  requirements  established 
under  the  EPC,  without  prejudice  to  proportionate  transitional  arrangements 
providing for additional translations on a temporary basis, without legal value 
and purely for information purposes; 

(b) 

no requirement to file a translation with national patent offices and no payment 
of publication fees; 

(c) 

no need to pay for representation at national level. 

Currently,  the  validation  costs  for  a  European  patent  of  typical  length,  in  three,  six  and 
thirteen Member States, respectively, and the entire Union would be the following: 

–  if  the  patent  proprietor  seeks  protection  in  only  three  Member  States  –  Germany,  France 
and  the  United  Kingdom  –  no  validation  requirements  apply  and  no  validation  costs  are 
incurred, following the entry into force of the London Agreement;  

–  if protection is sought in six Member States, validation costs may vary from EUR 3 000 to 
EUR  4 500  depending  on  the  Member  States  chosen  and  whether  the  relevant  Member 
States have implemented the London Agreement; 

–  validation  costs  would  be  more  than  EUR  12 000  when  protection  in  thirteen  selected 
Member States is sought, Union-wide coverage would cost between EUR 22 000 to EUR 
26 000 in validation costs. 

The  translation  costs  under  the  simplified  translation  arrangements  of  enhanced  cooperation 
would  amount  to  approximately  EUR  680  per  patent39,  without  prejudice  to  proportionate 
additional  translation  requirements  purely  for  information  purposes  that  might  be  deemed 
necessary  during  a  transitional  period.  This  corresponds  to  the  current  average  cost  of  the 
translation of the claims into the two working languages of the EPO other than the language 
of proceedings (Article 14(6) EPC). 

The  validation  costs  for  the  territories  of  the  participating  Member  States  would  thus  be 
identical  to  current  cost  of  protection  in  Member  States  which  are  parties  to  the  London 

39 

4 pages of claims x 85 EUR/page x 2 languages = 680 EUR. 

EN 

18 

   EN 

                                                 
Agreement and have entirely dispensed with translation requirements (Germany, France, UK 
and Luxembourg)40.  

Additional  costs  of  validation  would  only  occur  in  cases  where  the  patent  proprietor  would 
seek  to  extend  the  patent  protection  to  non-participating  Member  States.  As  a  result  of 
enhanced cooperation, significant cost savings would be made by the users across the Union. 
Notwithstanding  the  actual  number  of  participating  Member  States,  all  applicants  would 
benefit from the reduction in cost of patenting due to the simplified translation requirements. 
Certainly, the more Member States participate, the larger cost savings may be anticipated. 

40 

Contracting States with an official language in common with one of the EPO working languages that 
are  party  who  are  party  to  the  London  Agreement  are  required  to  dispense  entirely  with  translation 
requirements  (Article  1(1)  of  the  Agreement).  Within  the  EU,  this  applies  to  France,  Germany, 
Luxembourg and the United Kingdom. 

EN 

19 

   EN 

                                                 
2010/0384 (NLE) 

Proposal for a 

COUNCIL DECISION  

authorising enhanced cooperation in the area of the creation of unitary patent protection 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 329(1) 
thereof, 

Having  regard  to  the  requests  made  by  Denmark,  Estonia,  Finland,  France,  Germany,  Lithuania, 
Luxembourg, the Netherlands, Poland, Slovenia, Sweden and the United Kingdom, 

Having regard to the proposal from the European Commission, 

Having regard to the consent of the European Parliament41, 

Whereas: 

(1) 

(2) 

(3) 

In  accordance  with  Article  3(3)  of  the  Treaty  on  European  Union  (TEU),  the  Union  shall 
establish  an  internal  market,  shall  work  for  the  sustainable  development  of  Europe  based  on 
balanced economic growth and shall promote scientific and technological advance. The creation 
of  the  legal  conditions  enabling  undertakings  to  adapt  their  activities  in  manufacturing  and 
distributing  products  across  national  borders  and  providing  companies  with  more  choice  and 
opportunities  contributes  to  attaining  this  objective.  A  unitary  patent  which  provides  uniform 
effects throughout the Union should feature amongst the legal instruments which undertakings 
have at their disposal. 

Pursuant to Article 118 of the Treaty on the Functioning of the European Union (TFEU) and in 
the context of the establishment and functioning of the internal market, measures should include 
the  creation  of  uniform  patent  protection  throughout  the  Union  and  the  establishment  of 
centralised Union-wide authorisation, coordination and supervision arrangements. 

On  5  July  2000,  the  Commission  adopted  a  proposal  for  a  Council  Regulation  on  the 
Community patent for the creation of a unitary patent providing uniform protection throughout 
the Union. On 30 June 2010, the Commission adopted a proposal for a Council Regulation on 
the  translation  arrangements  for  the  European  Union  patent  (EU  patent)  providing  for  the 
translation arrangements applicable to the EU patent. 

(4) 

At the Council meeting on 10 November 2010, it was recorded that there was no unanimity to 
go ahead with the proposed Council Regulation on the translation arrangements applicable for 

41 

OJ C , , p. . 

EN 

20 

   EN 

                                                 
(5) 

(6) 

(7) 

the  European  Union  patent.  It  was  confirmed  on  10  December  2010  that  insurmountable 
difficulties  existed,  making  unanimity  impossible  at  the  time  and  in  the  foreseeable  future. 
Since the agreement on the proposed Council Regulation on the translation arrangements for the 
EU  patent  is  necessary  for  a  final  agreement  on  unitary  patent  protection  in  the  Union,  it  is 
established  that  the  objective  to  create  unitary  patent  protection  for  the  Union  could  not  be 
attained within a reasonable period by applying the relevant provisions of the Treaties. 

In  these  circumstances,  twelve  Member  States,  namely  Denmark,  Estonia,  Finland,  France, 
Germany,  Lithuania, Luxembourg, the Netherlands, Poland,  Slovenia, Sweden  and the United 
Kingdom, addressed requests to the Commission by  letters dated  7, 8  and  13 December 2010 
indicating that they wished to establish enhanced cooperation between themselves in the area of 
the  creation  of  unitary  patent  protection  on  the  basis  of  the  existing  proposals  supported  by 
these Member States during the negotiations and that the Commission should submit a proposal 
to the Council to that end. The requests were confirmed at the meeting of the Competitiveness 
Council  on  10  December  2010.  In  total,  twelve  Member  States  have  requested  enhanced 
cooperation. 

Enhanced cooperation should provide the necessary legal framework for the creation of unitary 
patent  protection  in  participating  Member  States  and  ensure  the  possibility  for  undertakings 
throughout the Union to improve their competitiveness by having the choice of seeking uniform 
patent  protection  in  participating  Member  States,  as  well  as  contributing  to  scientific  and 
technological advance. 

Enhanced  cooperation  should  aim  at  creating  a  unitary  patent,  providing  uniform  protection 
throughout  the  territories  of  the  participating  Member  States  and  which  would  be  granted  in 
respect of all those Member States by the European Patent Office (EPO). As a necessary part of 
the unitary patent, the applicable translation arrangements should be simple and cost-effective 
and correspond to those provided for in the proposal for a Council Regulation on the translation 
arrangements for the European Union patent42, presented by the Commission on 30 June 2010, 
combined with the elements of compromise proposed by the Presidency in November 2010 that 
had  wide  support  in  Council.  The  translation  arrangements  would  maintain  the  possibility  of 
filing  patent  applications  in  any  language  of  the  Union  at  the  EPO  and  would  ensure 
compensation of the costs related to the translation of applications filed in languages other than 
an official language of the EPO. The patent having unitary effect should be granted only in one 
of  the  official  languages  of  the  EPO  as  provided  for  in  the  European  Patent  Convention.  No 
further  translations  would  be  required  without  prejudice  to  transitional  arrangements  which 
would be proportionate and require additional translations on a temporary basis, without legal 
effect  and  purely  for  information  purposes.  In  any  case,  transitional  arrangements  would 
terminate  when  high  quality  machine  translations  are  made  available,  subject  to  an  objective 
evaluation of the quality. In case of a dispute, mandatory translation obligations should apply to 
the patent proprietor. 

(8) 

The conditions laid down in Article 20 TEU and in Articles 326 and 329 TFEU are fulfilled. 

(9) 

The area within which enhanced cooperation would take place, the establishment of measures 
for the creation of unitary patent providing protection throughout the Union and the setting up 

42 

COM(2010) 350. 

EN 

21 

   EN 

                                                 
of  centralised  Union-wide  authorisation,  coordination  and  supervision  arrangements,  is 
identified by Article 118 TFEU as one of the areas covered by the Treaties. 

(10) 

It was recorded at the Council meeting on 10 November 2010 and confirmed on 10 December 
2010 that the objective to establish unitary patent protection within the Union cannot be attained 
within a reasonable period by the Union as a whole, thus fulfilling the  requirement in Article 
20(2) TEU that enhanced cooperation be adopted only as a last resort. 

(11)  Enhanced cooperation in the area of the creation of unitary patent protection aims at fostering 
scientific and technological advance and the functioning of the internal market. The creation of 
unitary  patent  protection  for  a  group  of  Member  States  would  improve  the  level  of  patent 
protection  by  providing  the  possibility  to  obtain  uniform  patent  protection  throughout  the 
territories of the participating Member States and eliminate the costs and complexity for those 
territories. Thus, it furthers the objectives of the Union, protects its interests and reinforces its 
integration process in accordance with Article 20(1) TEU. 

(12)  The  creation  of  unitary  patent  protection  is  not  included  in  the  list  of  areas  of  exclusive 
competence  of  the  Union  set  out  in  Article  3(1)  TFEU.  The  legal  basis  for  the  creation  of 
European  intellectual  property  rights  is  Article  118  TFEU  which  falls  within  Title  VII  on 
Common  Rules  on  Competition,  Taxation  and  Approximation  of  Laws,  Chapter  3  on  the 
Approximation of Laws, and makes a specific reference to the establishment and functioning of 
the internal market, which is one of the shared competences of the Union according to Article 4 
TFEU. The creation of unitary patent protection including applicable translation arrangements 
therefore fall within the framework of the Union's non-exclusive competence. 

(13)  Enhanced cooperation in the area of the creation of unitary patent protection complies with the 
Treaties  and  Union  law,  and  does  not  undermine  the  internal  market  or  economic,  social  and 
territorial  cohesion.  It  does  not  constitute  a  barrier  to  or  discrimination  in  trade  between 
Member States and does not distort competition between them. 

(14)  Enhanced  cooperation  in  the  area  of  the  creation  of  unitary  patent  protection  respects  the 
competences,  rights  and  obligations  of  non-participating  Member  States.  The  possibility  of 
obtaining unitary patent protection on the territories of the Member States participating does not 
affect  the  availability  or  the  conditions  of  patent  protection  on  the  territories  of  non-
participating  Member  States.  Moreover,  undertakings  from  non-participating  Member  States 
should  have  the  possibility  to  obtain  unitary  patent  protection  on  the  territories  of  the 
participating  Member  States  under  the  same  conditions  as  undertakings  from  participating 
Member  States.  Existing  rules  of  non-participating  Member  States  determining  the  conditions 
of obtaining patent protection on their territory remain unaffected. 

(15) 

In particular, enhanced cooperation in the area of the creation of unitary patent protection would 
comply  with  Union  law  on  patents  since  enhanced  cooperation  would  respect  pre-existing 
acquis. 

(16)  Subject to compliance with any conditions of participation laid down in this Decision, enhanced 
cooperation  in  the  area  of  the  creation  of  unitary  patent  protection  is  open  at  any  time  to  all 
Member  States  willing  to  comply  with  the  acts  already  adopted  within  this  framework  in 
accordance with Article 328 TFEU, 

EN 

22 

   EN 

HAS ADOPTED THIS DECISION:  

Article 1 

Denmark,  Estonia,  Finland,  France,  Germany,  Lithuania,  Luxembourg,  the  Netherlands,  Poland, 
Slovenia,  Sweden  and  the  United  Kingdom  are  hereby  authorised  to  establish  enhanced  cooperation 
between  themselves  in  the  area  of  the  creation  of  unitary  patent  protection,  by  applying  the  relevant 
provisions of the Treaties. 

Article 2 

This Decision shall enter into force on the day of its adoption. 

Done at Brussels, 

For the Council 
The President 

EN 

23 

   EN